Federal judge rules Texas student can be compelled to wear RFID badge

But Andrea Hernandez, 15, can wear it with the RFID portion removed.

A federal judge ruled the Texas high school student who refused to wear her RFID-enabled ID badge (as part of a school pilot program) can be compelled to wear the badge (even without the chip), or she'll be transferred to a different school.

Andrea Hernandez, 15, had filed for a legal injunction to no longer be forced to carry the badge, on the grounds that it violated her constitutional and religious rights. She now can choose to stay at her current school, John Jay Science & Engineering Academy (a local magnet school in San Antonio) or be transferred back to the school she was normally assigned to, Taft High School. Among other things, Hernandez argued she is being denied equal protection without the chip as she is now inconvenienced—such as paying for her school lunch by other means—in ways students with the chip can avoid. But the judge summarily dismissed her arguments.

"But the inconvenience is the result of Plaintiff's own decision to refuse the Smart card," US District Judge Orlando Garcia wrote in a judicial order, denying the motion for preliminary injunction on Tuesday.

Judge Garcia also rejected the argument that Hernandez was being forced to express her support for the RFID pilot program simply by wearing the badge.

“The District contends that wearing or carrying a student ID badge is not expressive conduct under the First Amendment,” he added.

“The student ID badge, with or without the chip, is not meant to convey a particularized message, or any message at all. It is simply meant to identify the person carrying it as a student on that campus. The Court must agree with the District. Wearing a student ID badge does not communicate support for the pilot program, or convey any type of message whatsoever.”

The judge concluded that he generally doesn’t buy Hernandez’ arguments, writing “there has been no harm to Plaintiff, and there is no foreseeable harm to Plaintiff in the future. On the other hand, tying the District’s hands and preventing its administrators to exercise their discretion always raises a concern. The scales tip in the District’s favor.”

The Rutherford Institute, a civil liberties organization representing Hernandez, said it would appeal the decision to the United States Court of Appeals for the Fifth Circuit.

“By declaring Andrea Hernandez's objections to be a secular choice and not grounded in her religious beliefs, the district court is placing itself as an arbiter of what is and is not religious,” John W. Whitehead, the institute's president, told The San Antonio Express-News. “This is simply not permissible.”

Cyrus Farivar
Cyrus is a Senior Tech Policy Reporter at Ars Technica, and is also a radio producer and author. His latest book, Habeas Data, about the legal cases over the last 50 years that have had an outsized impact on surveillance and privacy law in America, is due out in May 2018 from Melville House. He is based in Oakland, California. Emailcyrus.farivar@arstechnica.com//Twitter@cfarivar

“By declaring Andrea Hernandez's objections to be a secular choice and not grounded in her religious beliefs, the district court is placing itself as an arbiter of what is and is not religious,” John W. Whitehead, the institute's president, told The San Antonio Express-News. “This is simply not permissible.”

But if a court can't make that distinction, what's to prevent anyone from breaking whatever law they feel like based on thier religious belief.

"Sorry officer, I know I was doing 90 in a 65 zone but my religion says I have to drive this fast."

In other news, I can't believe this case gets any attention outside the 'laugh and point at Texas' crowd. It seemed such a slam dunk - if she didn't want to wear the badge, she can go back to the regular school.

The student seems to be arguing that you are permitted to decide that any rule you don't like is against your religion, and therefore you are exempt from that rule.

Wouldn't that logic make all sorts of organizations (not just schools) unworkable? Every organization from the Boy Scouts to public libraries could be undermined. Could every rule without the force of law be ignored?

“By declaring Andrea Hernandez's objections to be a secular choice and not grounded in her religious beliefs, the district court is placing itself as an arbiter of what is and is not religious,” John W. Whitehead, the institute's president, told The San Antonio Express-News. “This is simply not permissible.”

But if a court can't make that distinction, what's to prevent anyone from breaking whatever law they feel like based on thier religious belief.

"Sorry officer, I know I was doing 90 in a 65 zone but my religion says I have to drive this fast."

In other news, I can't believe this case gets any attention outside the 'laugh and point at Texas' crowd. It seemed such a slam dunk - if she didn't want to wear the badge, she can go back to the regular school.

This is a case of wanting her cake and eating it to. Simply, she is at a better school and she and her parents want her to stay there. BUT their unfounded paranoia thanks to improper interpretations of the bible (Thanks to a lack of context) are causing undue issue with the school she is at because that school wants to use technology to make sure the kids on campus should be there. With some added features tossed in for good measure.

I have no issue with Faith or Belief in something. But many of us humans take that belief far to far for our own good. Look at all the craziness about the end of the world coming some day...why would any one want to latch onto something that meant their own death? Some times it makes me wish the Suiside Booths from Futurama were real...may have fewer nut cases running around.

So I guess she will be content to working at McDonald's or some other fast food place for the rest of her life as the companies I have worked at require that you wear an ID badge, some with RFID others without, but it is mandatory that it be on your person and in plain sight at all times. Would you like fries with that?

Whatever happened to the days when people accepted being told, "No," the first time? Now they take their case to someone- anyone- else that will listen and hope to get an answer in their favor. This whole "My way is right, and I'll do what I want" thing is out of control.

Judge Garcia also rejected the argument that Hernandez was being forced to express her support for the RFID pilot program simply by wearing the badge.

I remember in the initial Ars coverage, plenty of commenters where saying that the school was forcing her family to talk up the badge and support it publicly or something to that effect. I never saw a single reference to this stipulation in any of the legit media covering it, but it did come up in the Newsmax or Infowars dreck that a lot of people seemed to be going by. Now it seems that the whole "the family must endorse the RFID badges" tripe was never even there. It was something someone else had blown out of proportion and spun into a fake reality to support their contention. Let that be a lesson, I guess.

BigLan wrote:

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“By declaring Andrea Hernandez's objections to be a secular choice and not grounded in her religious beliefs, the district court is placing itself as an arbiter of what is and is not religious,” John W. Whitehead, the institute's president, told The San Antonio Express-News. “This is simply not permissible.”

But if a court can't make that distinction, what's to prevent anyone from breaking whatever law they feel like based on thier religious belief."Sorry officer, I know I was doing 90 in a 65 zone but my religion says I have to drive this fast."In other news, I can't believe this case gets any attention outside the 'laugh and point at Texas' crowd. It seemed such a slam dunk - if she didn't want to wear the badge, she can go back to the regular school.

Not only that, but courts have a responsibility to consider the validity of religious issues and secular purposes in exactly these kinds of cases, the intersection between government policy (schools) and religious beliefs. If the Rutherford Institute can't acknowledge this, then how much credibility do they deserve as an organization of lawyers?

I think the judge struck a fair balance. Her beliefs are being accommodated by the lack of RFID, but she has to live with the consequences of her choice.

Meanwhile, having an ID is essential to function in society, and that includes attending public schools. Her family could choose to homeschool. And while there are religious exceptions for Social Security numbers (like the Amish) and driver's licenses (choosing not to drive or have bank accounts, etc.), the people who choose the exceptions also have to live with the consequences of their beliefs.

Huh, I wasn't aware that she was attending a magnet school with an emphasis on science and engineering. Makes the whole objection via a dubious religious angle seem even more ironic. And the whole "but I'm inconvenienced in having to buy my school lunch via alternate means" argument was downright moronic. I mean, what was the alternative that they wanted? That ALL students would have to be forced not to use their cards, so she wouldn't feel different? A difference that she voluntarily picked! Oye, I'm glad this special snowflake got melted.

I knew the Rutherford Institute sounded familiar. They also backed the pro-Intelligent Design Creationist school board policy in the Kitzmiller v. Dover case, and they came to the aid of John Freshwater in his own sordid affair that involved branding a cross on a student's arm in addition to teaching Creationism. They're not really for "religious freedom," they're for entanglement of religion and government and endorsement of sectarian beliefs by teachers over and above the religious rights of students.

“By declaring Andrea Hernandez's objections to be a secular choice and not grounded in her religious beliefs, the district court is placing itself as an arbiter of what is and is not religious,” John W. Whitehead, the institute's president, told The San Antonio Express-News. “This is simply not permissible.”

But if a court can't make that distinction, what's to prevent anyone from breaking whatever law they feel like based on thier religious belief.

I don't know about breaking random laws, but there are specific cases where this has been accepted by the courts. For example, indian tribes are allowed to use peyote in religous ceremonies.

-- (b) Use, possession, or transportation of peyote---- (1) Notwithstanding any other provision of law, the use, possession, or transportation---- of peyote by an Indian for bona fide traditional ceremonial purposes in connection with---- the practice of a traditional Indian religion is lawful, and shall not be prohibited by the---- United States or any State. No Indian shall be penalized or discriminated against on ---- the basis of such use, possession or transportation, including, but not limited to, denial---- of otherwise applicable benefits under public assistance programs.

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"Sorry officer, I know I was doing 90 in a 65 zone but my religion says I have to drive this fast."

Good luck with that.

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In other news, I can't believe this case gets any attention outside the 'laugh and point at Texas' crowd. It seemed such a slam dunk - if she didn't want to wear the badge, she can go back to the regular school.

I think anytime the schools implement something totally new and different, it will have to be tested in court. And I don't think this is bad as such. Who knows, if the magnet school gave her a laptop, they may be spying on her with the built-in webcam.

I'd be wary of things like this, and despite the comments of the previous thread, I can just imagine the local mall and it's stores putting RFID scanners up to track school student shopping habits in the mall and other, more subtle privacy violations.

Very good decision, well done on drawing the line between the religious objection and the secular one. I do hope this continues to be challenged up to the SCOTUS because I would love for this to be a precedent for the entire Federal circuit. I imagine it will not be pursued, however, as soon as the girl has to attend her local school instead of the magnet program.

The only thing schools ought to be able to compel students to do is to behave while they are in school (code of conduct, no criminal behavior and so on). That's it. Anything else is overstepping their authority. Even the school attendance, or lack of, should be left to the parents and not the school, and school's only leverage in the matter should be the grades, the suspension and if need be the expulsion.

Behaving in school means following the rules. One of those rules is wearing the RFID. Crazy I know....

The only thing schools ought to be able to compel students to do is to behave while they are in school (code of conduct, no criminal behavior and so on). That's it. Anything else is overstepping their authority. Even the school attendance, or lack of, should be left to the parents and not the school, and school's only leverage in the matter should be the grades, the suspension and if need be the expulsion.

Except they need to be able to track school attendance, especially when (if I recall the original story on this) part of the money they get is based on attendance. Would you say it's a better use of classroom time to take 5 minutes taking attendance, or all students who swipe their card at the door as they enter?

“By declaring Andrea Hernandez's objections to be a secular choice and not grounded in her religious beliefs, the district court is placing itself as an arbiter of what is and is not religious,” John W. Whitehead, the institute's president, told The San Antonio Express-News. “This is simply not permissible.”

But if a court can't make that distinction, what's to prevent anyone from breaking whatever law they feel like based on thier religious belief.

I don't know about breaking random laws, but there are specific cases where this has been accepted by the courts. For example, indian tribes are allowed to use peyote in religous ceremonies.

-- (b) Use, possession, or transportation of peyote---- (1) Notwithstanding any other provision of law, the use, possession, or transportation---- of peyote by an Indian for bona fide traditional ceremonial purposes in connection with---- the practice of a traditional Indian religion is lawful, and shall not be prohibited by the---- United States or any State. No Indian shall be penalized or discriminated against on ---- the basis of such use, possession or transportation, including, but not limited to, denial---- of otherwise applicable benefits under public assistance programs.

-- (b) Use, possession, or transportation of peyote---- (1) Notwithstanding any other provision of law, the use, possession, or transportation---- of peyote by an Indian for bona fide traditional ceremonial purposes in connection with---- the practice of a traditional Indian religion is lawful, and shall not be prohibited by the---- United States or any State. No Indian shall be penalized or discriminated against on ---- the basis of such use, possession or transportation, including, but not limited to, denial---- of otherwise applicable benefits under public assistance programs.

Um, that's a law exempting indian tribes - it has nothing to do with a court decision, as far as I'm aware. What I AM aware of is that many, many people have tried to start a "religion" that allows the use of marijuana and were basically laughed out of the courtroom on their way to jail. I know one personally. lol

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I'd be wary of things like this, and despite the comments of the previous thread, I can just imagine the local mall and it's stores putting RFID scanners up to track school student shopping habits in the mall and other, more subtle privacy violations.

They don't have to wear the badge 24/7, obviously. Why would that be a legal concern? You can leave the badge at home when you go to the mall if you don't want them tracking you there.

In other news, I can't believe this case gets any attention outside the 'laugh and point at Texas' crowd. It seemed such a slam dunk - if she didn't want to wear the badge, she can go back to the regular school.

I take the use of RFID chips seriously for the reason that their use is easily abused by the user and by others. For a hacker, people who carry RFID's with personally identifiable information might as well be walking around with it printed on their shirts.

RFID's are great for some things, but imho definitely not for personal identification.

EDIT:

My response was never to imply I agree with this law suit. Only that I take the use and implications of RFID chips seriously. Which is a sentiment I believed would be generally agreed upon.

So I guess she plans on driving without a license too? Does her father?

I wonder if the real reason is that she took a bad photo on picture day and didn't want to wear that all year.

I wonder if the real reason is she wants to skip school and doesn't want it to be tracked by the RFID.

You can't track someone with an RFID. It's a near field device. Think of it as a proximity (prox) card used in some security situations.

There are different forms of RFID tags. Active (powered) RFID tags can have a range of hundreds of meters. But even with passive RFID you can read them from more than a few inches away if you have the right equipment. If you make a scanner that has three feet of range, you can put a pair of them in a doorway and get a pretty decent good idea who is walking through that doorway (people can always get blocking wallets or something akin). Add the need to use readers to enter restrooms, buy lunch, get admittance to study halls etc and tracking becomes a matter of keeping records of what tag was used at what time at what location. I studied/worked at a university where the students swiped magnetic cards to enter the building in the afternoon/evening and always for the computer labs etc. The logs were never purged during my years there.

So, yes, if you want to, and create a need for everyone to carry their personal RFID tag, you can track tags, and thus most likely the people they belong to.

From a privacy and integrity standpoint it would be interesting to know WHAT the school does with the data it collects and if they have a privacy/integrity policy regarding that data and the users.

-- (b) Use, possession, or transportation of peyote---- (1) Notwithstanding any other provision of law, the use, possession, or transportation---- of peyote by an Indian for bona fide traditional ceremonial purposes in connection with---- the practice of a traditional Indian religion is lawful, and shall not be prohibited by the---- United States or any State. No Indian shall be penalized or discriminated against on ---- the basis of such use, possession or transportation, including, but not limited to, denial---- of otherwise applicable benefits under public assistance programs.

Wait... They actually call them "Indians"?

If the law was written more recently, it would probably say American Indian, but the wording isn't unclear. What would you call them? lol

To effectively avoid RFID technology on religious grounds the family should be living like the Amish.

The technology is so ubiquitous that you would have to avoid a vast array of modern conveniences (including much of the food from the grocery store) to support this argument.

The rest of the argument is absolute bunk as well:1. "I am being inconvenienced by the choices I made" (I would like to see this one fly in divorce court).2. "I am being compelled to endorse the RFID program against my religious beliefs by wearing an identical card without and RFID tag". (Isn't this argument dependent on other people's beliefs?)

“By declaring Andrea Hernandez's objections to be a secular choice and not grounded in her religious beliefs, the district court is placing itself as an arbiter of what is and is not religious,” John W. Whitehead, the institute's president, told The San Antonio Express-News. “This is simply not permissible.”

But if a court can't make that distinction, what's to prevent anyone from breaking whatever law they feel like based on thier religious belief.

I don't know about breaking random laws, but there are specific cases where this has been accepted by the courts. For example, indian tribes are allowed to use peyote in religous ceremonies.

-- (b) Use, possession, or transportation of peyote---- (1) Notwithstanding any other provision of law, the use, possession, or transportation---- of peyote by an Indian for bona fide traditional ceremonial purposes in connection with---- the practice of a traditional Indian religion is lawful, and shall not be prohibited by the---- United States or any State. No Indian shall be penalized or discriminated against on ---- the basis of such use, possession or transportation, including, but not limited to, denial---- of otherwise applicable benefits under public assistance programs.

"Bona fide purpose" is a key part of this. The tribe was presumably able to clearly demonstrate that peyote had a legitimate religious purpose. The religious objection to RFID tags is something from the Book of Revelation, which is vague, metaphorical, and has been used to implicate everything from credit cards to David Hasselhoff - not quite as convincing.

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In other news, I can't believe this case gets any attention outside the 'laugh and point at Texas' crowd. It seemed such a slam dunk - if she didn't want to wear the badge, she can go back to the regular school.

I think anytime the schools implement something totally new and different, it will have to be tested in court. And I don't think this is bad as such. Who knows, if the magnet school gave her a laptop, they may be spying on her with the built-in webcam.

I'd be wary of things like this, and despite the comments of the previous thread, I can just imagine the local mall and it's stores putting RFID scanners up to track school student shopping habits in the mall and other, more subtle privacy violations.

Then object over privacy grounds. It's a better argument, throwing in the religious nonsense just dilutes it. And not sure I agree with the notion that 'everything new will have to be tested in court'. If every innovation and improvement had to go through a years-long legal battle before anyone could use it, people would largely give up on trying to innovate and improve life.